Shaming Punishments:

My friend Dan Markel has an interesting essay up at The New Republic about the Ninth Circuit’s recent shaming decision.The defendant in the case had stolen mail and was sentenced to prison. As a condition of supervised release — a sort of probationary period that follows prison sentences in the federal system — the suspect will have to spend 8 hours outside a local post office wearing a sign that says, “I stole mail. This is my punishment.” The case raises two questions, one statutory and one constitutional. The statutory question is whether this shaming punishment is consistent with the federal statute that governs permissible conditions of supervised release, 18 U.S.C. 3583(d). The constitutional question is whether the punishment violates the Eighth Amendment’s ban on cruel and unusual punishment.

   Markel, who has written extensively about shaming punishments, argues in the essay that the punishment violates the 8th Amendment:

   Juxtaposed against [the Eighth Amendment], shaming offenders is simply wrong, regardless of whether it is labeled rehabilitative or punitive. The very goal of shaming, as the dissent by Hawkins recognized, is the dehumanization of another person before, and with the participation of, the public. Before we permit democratic institutions to subject an offender to ridicule, scorn, and humiliation, we have to ask whether this kind of punishment comports with evolving standards of decency and the dignity of humankind. The answer is clearly no. Such punishment involves an unacceptable form of preening and immodest sanctimony. What’s more, the condition imposed here constitutes a coerced self-laceration that conjures images of the denunciation rallies and ritual debasements of history’s least liberal regimes.

  I am no expert on these questions, but I wonder about Markel’s chosen level of generality. Markel applies the Eighth Amendment analysis at a very abstract level; he views shaming as a constitutionally illegitimate basis for punishment, so that all shaming punishments violate the 8th Amendment. But why not apply the analysis at a more specific level? Why not ask whether wearing a sign for 8 hours comports with evolving standards of decency? I would guess most people think that it does.